1. The Special Marriage Act 1954: Origins and Compromises
The Special Marriage Act (SMA) was enacted in 1954 as part of a series of reforms to personal laws in India that Jawaharlal Nehru had made a priority. The SMA was meant to be a legislation to govern marriages that could not be solemnised according to religious customs – which essentially meant inter-faith or inter-caste marriages.
A similar law had existed since 1872, but it included some extremely problematic elements, including renunciation of religion by anyone getting married under it, and no provision for dissolution or nullification of marriage. Renunciation as a precondition was removed for marriages among Hindus, Sikhs, Buddhists and Jains in 1922, but this wasn’t enough, necessitating the 1954 SMA.
Now, anybody can get married under the SMA without giving up their religion, and there are proper provisions for divorce (including by mutual consent), custody of children, and alimony.
The SMA was supposed to be a way of circumventing cultural taboos against marrying outside one’s religion or caste. But while it does provide for this, it came into being at a time when Nehru was embroiled in a bitter struggle with Hindu conservatives both within the Congress and outside it, who were not pleased with his proposals for reforming the Hindu personal law, and were also not happy with the idea of unrestricted inter-religious marriages.
As a result, the SMA came to include a number of provisions meant to serve as a compromise between Nehru and the conservatives, two of which stand out:
- The requirement of a notice period before a marriage can be conducted – which makes the process more cumbersome;
- If a Hindu, Buddhist, Sikh or Jain marries outside of these communities, they are no longer considered part of the “undivided family” – which means they cannot inherit ancestral property if they marry a Muslim, Christian, etc.